In a clear rebuke of a credit repair organization’s tactics, a judge in the Middle District of Florida said the Fair Debt Collection Practices Act (“FDCPA”) cannot be weaponized against a debt collector for declining to participate in a scam. The “scam” in this case was a letter sent to the debt collector by the credit repair organization, Credit Repair Lawyers of America (CRLA).
In Dukes v. LVNV Funding, Case Number 21-cv-1342 (M.D. FL 2022), a consumer engaged a credit repair organization for 80$ per month to try to “straighten out” her credit so she could apply for a mortgage. On March 5, 2019, she disputed her LVNV account. The letter appeared to bear her signature. At some point in 2019, the consumer engaged CRLA (it is unclear whether CRLA was engaged before or after the March 5th letter).
Over two years later, on May 28, 2021, CRLA drafted and sent a letter to LVNV stating the consumer no longer disputed the account, so LVNV should remove the dispute mark from her credit report. The letter was signed electronically by an out-of-state attorney.
Believing the letter was a scam, LVNV's servicer did not remove the dispute upon receipt. Instead, the letter was marked as a scam because:
- It arrived in an envelope indicating Michigan Consumer Lawyers sent it, but the letterhead on the correspondence indicated it was from CRLA.
- No Power of Attorney indicating CRLA could act on the consumer's behalf was included.
- It had no wet handwritten signature.
- No payment was included with the rescission of the longstanding dispute.
- It did not include the consumer’s account number.
- The consumer was not copied on the letter.
- The account had been disputed for years; and
- it was one of a slew of nearly identical letters received.
The consumer, represented by CRLA, filed a suit alleging LVNV violated the FDCPA by failing to remove the dispute upon receipt of the letter. LVNV deposed the consumer, and she testified (1) she disputed the amount of the account, not that the account was hers; and (2) she authorized CRLA to send the letter to remove the dispute so she could move forward on her mortgage application.
LVNV moved for summary judgment on the basis that it did not violate the FDCPA because the consumer still disputed the account. The consumer responded by stating she disputed the amount, not the account. The court found there is no difference between disputing the amount and the account and granted LVNV's motion for summary judgment.
In ruling in LVNV's favor, the court did not mince words, stating, “in spite of [the consumer]’s attempt to misrepresent the status of her debt [LVNV] has accurately reported it." The court further admonished the consumer and CRLA stating, "[the consumer] does not have the right to manipulate her credit reports with false representations to improve her access to credit.”
Read the full Order here.
There are a few things that stand out in this win. First, LVNV’s servicer clearly articulated why they considered the letter to be a scam. The result could have been different without evidence showing that LVNV had a reasonable basis to determine the letter was a scam. Cases like this, which turn on a debt collector's ability to articulate and show why they took a specific action, are a good reminder that it's never a bad time to review basic procedures (like note-taking procedures) to ensure standards are met.
Second, LVNV took the consumer's deposition, and the consumer’s testimony allowed the court to find in LVNV’s favor because the consumer admitted she still disputed the account. Over the past year or so, due to the high visibility of the Hunstein case, debt collectors have spent considerable time discussing motions to dismiss and standing. This case, as well as this one from a few months ago, are good reminders that sometimes a case needs to be litigated through the discovery phase to win. Yes, litigation costs time and money, but the results can be worth it in the proper case. Though motions for summary judgment typically take a fair amount of attorney time, they can be worth it.